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Mother Applies for Social Services for Unborn Child


Petitioner applied for public assistance and medicaid from the Nassau County Department of Social Services for herself and her unborn child. At the time of the application, she was 20 years old and living separate and apart from her husband and residing in the home of her parents. Without any factual determination concerning the amount of support actually furnished by her parents, the Nassau County Department of Social Services, by letter, notified petitioner that her application for eligibility for public assistance was being denied.

A New York Family Lawyer said following a fair hearing proceeding the hearing officer rendered a decision affirming the denial of assistance by the Nassau County Department of Social Services on the grounds that: When a pregnant woman applies for public assistance for her unborn child and her needs are being met, the unborn child has no unmet needs.

A New York Custody Lawyer said that petitioner commenced this Article 78 proceeding wherein she seeks to annul the determination after the fair hearing challenging the alleged practice and policy of respondents of 1) denying public assistance to married minors on the grounds that they are the legal responsibility of their parents; (2) denying eligibility of married minors for public assistance by assuming resources of legally non-responsible relatives is available for their support without a finding that such resources are in fact being expended for the minor’s support; and 3) denying eligibility of the unborn child for public assistance on the grounds that the pregnant mother’s needs are being met and the unborn child is precluded from establishing independent needs.

At the outset it is noted that the pleadings as framed do not seek class action relief, nor does the Court make its determination as a class action, but only on the basis of the individual relief sought in the petition.

The aid to families with dependent children program is established pursuant to Title IV of the Social Security Act, 42 U.S.C. § 601 et seq. The program which is designed to provide financial assistance to needy, dependent children and the parents or caretakers who live with and care for them. A Bronx Family Lawyer said that while states are not required to establish a program authorized by the Social Security Act, if they elect to do so, they must abide by the federal requirements as set forth in the Act and the implementing regulations of the Department of Health, Education and Welfare.

The Court finds that petitioner, a married minor, was improperly denied eligibility for assistance for herself and her intrauterine child on the grounds that her parents were responsible for her support. In that the petitioner is married, she is considered as being emancipated. Petitioner is separated from her husband and temporarily residing with her parents. The ‘fair hearing’ failed to elicit information as to petitioner’s income or financial resources, if any. Nor did the Department of Social Services apparently follow up the disclosure that the Family Court had made provisions for payment of support by petitioner’s husband. The parent’s income is of no consequence in this matter even if it could be assumed there was an obligation to support petitioner, their daughter, there is no such obligation for the unborn child The decision in a case resolves the question as to whether the Social Security Act regarding the meaning of ‘dependent children’ mandated the inclusion of unborn children, and found it did not. However, the Court recognized that many states do have plans which provide aid to unborn children. The states in accordance therewith have the option of including unborn children within their plan. New York States is one of those states which have exercised the option to include unborn children in its state plan.

Section 352.30 of 18 NYCRR provides:'(a) For budgetary purposes the agency shall include in its estimate of need and application of income all persons applying for or receiving public assistance and care and living as a unit within the same household; (c) A Bronx Child Custody Attorney said the purposes of the schedule of monthly grants and allowances (Schedule SA–2 of Section 352.2 of this Part) only, the household of a pregnant woman shall be deemed increased by one person from the fourth month of medically verified pregnancy.

There is no question that petitioner was pregnant for a period longer than four months and that in the interim she has given birth to a son. As a result, petitioner at the least would have been eligible for public assistance as grantee for her unborn child regardless of whether she herself was eligible for assistance since, as noted above, the Legislature of the State of New York has so provided.

Finally, the question as to the administrative letter must be addressed. This letter categorically establishes eligibility ‘at the time pregnancy is medically verified Provided there is a deprivation factor.

A woman, pregnant out-of-wedlock and not living with the alleged father of the unborn child, would be categorically eligible for aid to families with dependent children when the pregnancy is medically verified. The deprivation factor is continued absence of the father.

The medically verified pregnancy of the wife does not constitute a deprivation factor until the fourth month of pregnancy. A woman is considered, for the purposes of families with dependent children, to be incapacitated from the fourth month of medically verified pregnancy until twelve (12) weeks after delivery or until pregnancy is otherwise terminated. families with dependent children categorical eligibility exists from the fourth month of the medically verified pregnancy.’ To this point the Court observes it is a strange paradox that a woman pregnant out-of-wedlock apparently has superior rights to a married woman whose husband has left her to her own resources where all other factors are the same. However, the administrative letter noted above continues to make an even greater distinction.

When a pregnant woman applies for public assistance for her unborn child and her needs are being met, the unborn child has no unmet needs. There are, therefore, no needs to be met under a public assistance program. For example, parents of a pregnant daughter are meeting all of the daughter’s needs. An application for public assistance for the unborn child would be denied since the unborn child has no needs apart from the mother and the mother’s needs are being met.

The instant matter is squarely on point with the illustration cited in the administrative letter to a certain point. Here, the daughter, petitioner, resides with her parents. However, she is a married woman and is, therefore, emancipated. There is no requirement for her parents to child support or herself. This letter is an attempt to change legislation enacted by the New York State Legislature. The proper function of an administrative rule or letter is to implement, not amend a statute. Furthermore, there is no testimony or other showing in the ‘fair hearing’ minutes that petitioner’s emancipation was considered, or that petitioner’s husband was obligated to support petitioner, and that he did in fact do so. Nor was there any investigation into the claim that petitioner’s medical expenses due to per pregnancy were in fact due and unpaid.

Furthermore, it has been called to the attention of the Court that, subsequent to this petition, the hospital expenses attending the delivery of the petitioner’s child have been paid by the Suffolk County Department of Social Services.

Accordingly, it is the finding of the Court, in concurrence with the statutes, regulations and cases cited above, that the holding in the ‘fair hearing’ determination must be reversed and that medical and financial assistance should have been granted to petitioner as grantee for her unborn infant from the fourth month of pregnancy until the commencement of the period covered by the Suffolk County Department of Social Services; 2) that a further investigation as to petitioner’s income sources, if any, is necessary to determine her eligibility for assistance and granted if appropriate.

Petition for a judgment, pursuant to Article 78, annulling the determination of respondent, as being arbitrary and capricious, is granted.

Persons seeking to be supported should show proof that they are entitled. Here in Stephen Bilkis and Associates, our Suffolk County Child Support lawyers determine as to the entitlement and amount of support to be awarded to a person. Through our Suffolk County Child Custody attorneys, the qualified spouse entitled to the custody of a child will be determined. Call us now for more information.

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